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Five tips for being a professional witness

Being called as a professional witness for the first time is a nerve-wracking prospect. Although every doctor has plenty of practice in presenting patient histories and treatment plans, the healthcare environment feels more collegial than a court, inquest or tribunal, while the formal legal procedures can seem alien to the uninitiated. To help ensure your appearance in the witness box doesn’t become an ordeal, it’s advisable to prepare in advance. The following five tips can help.

1. Know your limits

Your role is to help establish the facts by giving first-hand oral evidence of your clinical involvement with a patient. This means your testimony will focus on your observations and understanding of the case and any relevant clinical history.

Unlike an expert witness, you are not there to give a medical opinion. Professional witnesses are occasionally asked to give their professional interpretation of the facts while on the stand, such as how an injury may have been caused. The GMC says this is permissible, ’but you should make clear what is factual evidence and what is your opinion based on your professional judgement and experience.’1 Do not be afraid to say that you don’t know or admit the matter is outside your area of expertise.

2. Review relevant documents

You probably won’t be allowed to look at any non-contemporaneous records or reports while on the witness stand so it is advisable to reread your written report carefully in advance, especially as it may have been a while since it was written.

You will probably be allowed to refer to original patient records, but bear in mind that you have been called to provide first-hand evidence. If you are asked about something which isn’t in the records, it will be acceptable to quote from memory or state what your usual practice would have been in the circumstances.

3. Consider patient confidentiality

Typically a patient will have given consent for information to be disclosed to the court. However, even when under oath, you must be mindful of your duty of patient confidentiality. If a barrister or solicitor attempts to compel you to disclose what appears to be irrelevant information about the patient’s medical history or about a third party, the GMC says you should raise your objection with the judge or presiding officer2.

4. Give concise answers

When giving evidence your responses should be factually accurate, but also in plain English and to the point. It’s the job of barristers and advocates to elicit information through their examination and cross-examination, and it’s unwise to volunteer additional information that wasn’t asked for. Be aware that often a simple yes or no will do. Stay calm, focus on answering the question put to you and address your responses to the judge and jury (if one is present).

5. Be organised

It may seem obvious, but when attending court make sure you know where you are going, as well as where to park and so on. The last thing you want is to arrive late or feeling stressed. Dress smartly and be prepared to wait for some time before you are called.

By preparing in advance, which can include getting advice from your medical defence organisation, appearing as a professional witness in court shouldn’t be too taxing and your evidence will help to ensure the court can establish the truth.

Readers' comments (2)

It is not unusual for barristers and advocates to say something that isn't actually a question, but is designed to lead you on to add to a previous answer or elicit something from you, often when they are trying to lead you to say something advantageous to their client. Don't be tempted to respond. If he/she appears to be waiting for you to say something, allow a short period of silence then, if there is still an expectation for you to respond, say "I'm sorry, your question isn't clear, can you explain what it is that you want me to answer?". A good judge/presiding officer will only allow this "game" to go on for a short while before interveniong and directing the questioner to frame the question explicitly. Often, there isn't one!

Also, never, NEVER be tempted to try to "explain" something to a judge. They are experts at running their Court, and won't take kindly to any attempts by you to "help". They will direct you or assist you if you seek it, but don't think that they have "misunderstood" anything given in evidence. If something is factually wrong or is such that you feel it needs correcting, simply ask the judge, "May I clarify the matter of xxxxx?" and ACCEPT THE ANSWER! Don't argue! :)